Richard and Mary Guzman, Appellants, v. Western State Bank of Devils Lake, North Dakota, a Northdakota Corporation, et al., Appellees, 516 F.2d 125 (8th Cir. 1975)

The appeal in this action for declaratory and monetary relief presents for our review the question whether North Dakota's prejudgment attachment statute, North Dakota Century Code (N.D.C.C.) Chapter 32-08, is unconstitutional on its face or as applied in the attachment proceeding giving rise to this federal action. Plaintiff-appellants contend that the ex parte attachment and seizure by defendants of a mobile home in which plaintiffs had property rights and in which they resided and the seizure of plaintiffs' automobile denied plaintiffs due process of law as guaranteed by the Fourteenth Amendment to the United States Constitution.

In addition to Western State Bank of Devils Lake, North Dakota, defendants named in the amended complaint were Lyle Fering, individually and as President of the bank; James Kuchar, individually and as Vice-President of the bank; Bill Johnson, d/b/a Bill's Mobile Homes in Devils Lake, North Dakota; and LeRoy Ouellette, individually and as Sheriff of Rolette County, North Dakota.

The United States District Court for the District of North Dakota, on the pleadings, interrogatories, depositions, and other documents, granted the defendants' motion for a summary judgment and dismissed plaintiffs' action. Plaintiffs have appealed. We reverse and remand.

A resume of the relevant facts antedating and contemporaneous with the seizure of plaintiffs' property by attachment will place the issue before us in proper perspective. In September of 1970, the Guzmans purchased a 1970 Medallion Mobile Home from Bill Johnson of Bill's Mobile Homes. The Guzmans executed a retail installment contract and security agreement in the amount of $8,900.25, which included physical damage and credit life insurance, with an additional $3,773 to be paid as finance charges. The financing contract was sold by Johnson to Western State Bank with recourse. Under the financing contract, the plaintiffs were obligated to make monthly installments to Western of $150.75, commencing October 14, 1970.

On January 28, 1972, the Guzmans borrowed another $310.98 from Western and executed a note under which they agreed to pay Western an additional $51.83 per month, commencing March 15, 1972. Western added the Chevrolet automobile to its previous financing statement and security agreement covering the Medallion Mobile Home. Between October 14, 1970, and March 5, 1973, the Guzmans paid Western approximately $4,075.

Numerous complaints were made by the Guzmans to both Johnson and Western in regard to claimed defects in the trailer. The problems related to defective windows and doors and the heating system. The defects, which permitted the cold air to penetrate the interior of the mobile home, caused Mr. Guzman to purchase an inordinate amount of propane fuel. This, in turn, rendered it difficult for the Guzmans to maintain their payments to the bank. After considerable correspondence relating to the Guzmans' delinquency on the payments, Western filed an action on March 5, 1973 against the Guzmans in a North Dakota state court seeking a money judgment for the balance due on the mobile home contract and the automobile note.

On the same day, Kuchar, Vice-President of the bank, acting pursuant to N.D.C.C. § 32-08-05, filed the following affidavit:¹ 

James Kuchar, being first duly sworn, deposes and says; that he is a Vice President of the Western State Bank of Devils Lake, North Dakota; that the verified Complaint in the above entitled action is brought to recover purchase money for personal property sold to the defendants and that the amounts set out in the complaint is now due and owing to the plaintiff.

The bank also filed a bond as required by N.D.C.C. § 32-08-06. Thereupon a warrant of attachment was issued by the clerk of the court, as provided by § 32-08-04. Armed with the warrant of attachment, Sheriff Ouellette proceeded to the mobile home, which was occupied by the Guzmans and some of their children. Defendant Kuchar and defendant Johnson were at the mobile home when the sheriff arrived, or appeared shortly thereafter. Neither Mr. Guzman, a county social worker, nor Mrs. Guzman, a community health representative, was at the mobile home, although Mrs. Guzman arrived there shortly thereafter in response to a telephone call from Sheriff Ouellette. Her efforts to dissuade the sheriff and Kuchar from taking possession of and moving the mobile home were of no avail. After removing the stripping which surrounded the bottom of the mobile home unit, an attempt was made by Johnson or his representative to move the mobile unit with Johnson's truck. The attempt failed, however, because the wheels of the trailer were frozen in the ground. Arrangements were then made to secure a John Deere tractor. The tractor and the truck together were able to remove the home from its location. It was taken by the sheriff to Rolla, North Dakota, and subsequently removed to another location. It stands undisputed that about four and one-half hours were required to remove the mobile home unit. The automobile was also seized under the warrant of attachment. Mr. Guzman, who was on duty during all of this time, was completely unaware of what was taking place until he arrived at the site of his former home, at which time the sheriff served upon Guzman the warrant of attachment and other papers issued by the state court.

Thereafter this action was filed in the United States District Court and, by leave, plaintiffs were permitted to file an amended complaint on October 16, 1973. Jurisdiction was premised under 28 U.S.C. §§ 1331(a), 1343(3), 1343(4), 2201, 2202, and 42 U.S.C. § 1983. Plaintiffs sought a judgment declaring (a) that N.D.C.C. Chap. 32-08 was unconstitutional on its face and (b) that the seizure of plaintiffs' residence and automobile did not comport with the requirements of due process as guaranteed by the fourteenth amendment. Additionally, plaintiffs sought actual and punitive damages, but did not seek injunctive relief. The state court proceedings have been stayed pending the determination of this case.

Clearly, we must focus upon three recent Supreme Court decisions, Sniadach v. Family Finance Corp., 395 U.S. 337, 89 S. Ct. 1820, 23 L. Ed. 2d 349 (1969); Fuentes v. Shevin, 407 U.S. 67, 92 S. Ct. 1983, 32 L. Ed. 2d 556 (1972); and Mitchell v. W. T. Grant Co., 416 U.S. 600, 94 S. Ct. 1895, 40 L. Ed. 2d 406 (1974), particularly the Mitchell case.

The rights of prejudgment creditors were first significantly eroded in Sniadach v. Family Finance Corp., supra, where the Court overturned a Wisconsin statute which allowed a debtor's wages to be garnished by a court summons issued by the court clerk on the request of a creditor. The debtor was not accorded a hearing before the seizure and was unable to quash the garnishment suit. Mr. Justice Douglas held that there were no extraordinary circumstances justifying such a summary procedure, and that therefore the Wisconsin statute denied the debtor due process.²  He also emphasized the drastic consequences a wage garnishment may have upon the debtor, consequences which could "drive a wage-earning family to the wall." 395 U.S. at 341-342, 89 S. Ct. at 1823.

In Fuentes v. Shevin, supra, the Supreme Court extended the Sniadach reasoning to summary prejudgment remedies other than garnishment, overturning Florida and Pennsylvania replevin statutes. The Court in Fuentes pointed out that the Florida statute did not require the applicant to make a convincing showing before seizure that the goods were, in fact, "wrongfully detained." 407 U.S. at 73-74, 92 S. Ct. 1983. Rather, the writ of replevin issued upon the bare conclusory allegations of the creditor. Under the Pennsylvania statute, the creditor did not have to initiate court action for repossession or even allege that he was lawfully entitled to the property, and the debtor had to initiate legal proceedings himself to regain possession. 407 U.S. at 77-78, 92 S. Ct. 1983.

The Fuentes Court concluded that even a temporary taking of property was a deprivation of property rights, thereby invoking fourteenth amendment due process consideration. Thus, the broad ruling of Fuentes seemed to be that, except for a few "extraordinary situations,"³  there had to be an opportunity for a hearing for the debtor before there could be a prejudgment seizure of goods. See generally Note, Procedural Due Process The Prior Hearing Rule and the Demise of Ex Parte Remedies, 53 B.U. L. Rev. 41 (1973). Moreover, the Court explicitly declined to limit its holding in the case to replevin of items that were "necessities of life." 407 U.S. at 88-90, 92 S. Ct. 1983.

Obviously, under the reasoning of Fuentes the North Dakota Act in question is unconstitutional, since there is no hearing prior to seizure. But Fuentes was subsequently limited by Mitchell v. W. T. Grant, supra.

In Mitchell, the Court considered the provisions of Louisiana Code of Civil Procedure which made available to a mortgagor or lien holder a writ of sequestration to forestall waste or alienation of the encumbered property. The issue, similar to that in Sniadach and Fuentes, was whether the sequestration violated the Due Process Clause of the fourteenth amendment because it was ordered ex parte, without prior notice to the debtor or opportunity for a hearing. The majority, Mr. Justice Powell filing a concurring opinion, sustained the Louisiana Act.

In Fuentes, the majority had emphasized that the debtor had certain proprietary rights in the goods summarily seized; in Mitchell, the Court pointed out that the creditor also had an interest in the property in question, and reasoned that in some cases this interest of a creditor could be adequately preserved only by means of a summary sequestration of the property. Consequently, the Court in Mitchell established a constitutional balancing test by which the conflicting interests of the state in providing protection for the creditor's proprietary rights by summary seizure and of the debtor in avoiding a wrongful seizure of property in his possession are to be weighed in determining if due process has been afforded. The balancing test in Mitchell has been characterized in the following manner:

Under such a test, the Court will determine the need for particular procedural safeguards by comparing the extent to which they further the defendant's interest in avoiding a wrongful or arbitrary deprivation of his property with their negative effect upon the interests of the state in providing protective creditor remedies. If, on balance, the potential for harm to the defendant under the state-adopted procedure is slight, in light of substantial advancement of a legitimate state interest in providing ex parte preliminary relief, the prejudgment procedure will be upheld as a "constitutional accommodation of the conflicting interests."The Supreme Court, 1973 Term, 88 Harv. L. Rev. 41, 75 (1974).

The district judge and the defendants in our case regard Mitchell as supportive of the North Dakota statutory scheme under attack here. We take a different view of Mitchell and hold that because of vital distinctions between the provisions of the Louisiana sequestration law and the North Dakota attachment statute, Mitchell dictates that plaintiffs were denied due process of law.

* In achieving a constitutional accommodation of the interests of the debtor and creditor, the issuance and supervision of the warrant of attachment is of vital importance. Only if certain procedural safeguards are included in the attachment process will the possibility of a wrongful taking from the debtor be minimized and the seizure of the goods without prior notice and hearing thereby fall within the limits of tolerance of due process. The statutory scheme of North Dakota, tested by the Mitchell standard, is, in our view, fatally defective.

* Under the Louisiana sequestration statute, the writ will not issue on a conclusory allegation of ownership or possessory rights. Moreover, the power of the debtor to conceal or transfer the merchandise to the detriment of the creditor "is one of the considerations weighed in the balance by the Louisiana law in permitting initial sequestration of the property." 416 U.S. at 609, 94 S. Ct. at 1900. Under N.D.C.C. § 32-08-01, the danger of concealment or disposal of the goods or the possibility of removal of the merchandise from the state by the debtor need not be asserted as general prerequisites for obtaining a warrant of attachment, but rather are only several of nine grounds which the creditor may assert in his affidavit seeking the warrant of attachment.⁴  Moreover, the creditor in our case cited § 32-08-01(8) as justifying the attachment in this case, the most general of the nine grounds listed.⁵ 

Reviewing the affidavit submitted in the present case, we do not believe that it is sufficient. The affidavit of Kuchar and the bank's complaint in the action on the debt, both filed in conjunction with the request for a warrant of attachment, satisfy the requirement of Fuentes and Mitchell that the attachment be based upon more than conclusory allegations of ownership or possessory rights: in this instance the documents filed by the bank in support of the warrant of attachment showed the precise nature and the amount of the claim against the Guzmans. Nevertheless, the affidavit of defendant Kuchar does not aver that the summary attachment was necessary to preserve the property interests of the creditor in the personalty, nor does the North Dakota attachment law require such an averment.

Clearly, the ex parte attachment of property in the possession of the debtor is a drastic remedy, and the Mitchell opinion suggests that the remedy should be employed to protect a creditor's interest only if there is a danger that those interests will be destroyed or defeated unless such a summary step is taken.⁶  In the absence of an assertion in the affidavit that the creditor believes that the property will be concealed, disposed of, or destroyed and the creditor's interest therein lost or defeated, we do not believe that the ex parte issuance of the warrant of attachment is justified. Accord Garcia v. Krausse, 380 F. Supp. 1254, 1258 (S.D. Tex. 1974); Woods v. State of Tenn., 378 F. Supp. 1364, 1366 (W.D. Tenn. 1974) (three-judge court). See also Note, 41 Brooklyn L.Rev. 380 (1974). If such an emergency situation does not exist, the creditor's interest in the property probably will not be impaired by a short delay to provide notice and hearing to the debtor.

B

In Orleans Parish of Louisiana, the writ of sequestration is issued by the judge. In North Dakota, the warrant of attachment "shall be issued by the clerk of the court in which the action is commenced." N.D.C.C. § 32-08-04. The defendants in this case seek to minimize the absence of judicial supervision of the North Dakota attachment proceedings by citing language from Mr. Justice Stewart's dissent in Mitchell : "(T)he fact that the official who signs the writ after the ex parte application is a judge instead of a court clerk is of no constitutional significance." 416 U.S. at 632, 94 S. Ct. at 1912. But Mr. Justice White's majority opinion in Mitchell cast the role of the supervising judge in a different light. Indeed, throughout his opinion Justice White emphasized the necessity of judicial supervision of the proceedings. Thus he observed:

Mitchell was not at the unsupervised mercy of the creditor and court functionaries. The Louisiana law provides for judicial control of the process from beginning to end. This control is one of the measures adopted by the State to minimize the risk that the ex parte procedure will lead to a wrongful taking.

416 U.S. at 616-17, 94 S. Ct. at 1904. Similarly, Justice White noted that "the approval of a writ of sequestration is not, as petitioners contend, a mere ministerial act." 416 U.S. at 616 n. 12, 94 S. Ct. at 1905. See also 416 U.S. at 620 n. 14, 94 S. Ct. 1895. Clearly, the Court in Mitchell believed that the active participation of a judge, exercising judicial discretion whenever necessary, would aid in minimizing the likelihood of an improvident issuance of a writ of sequestration. In addition, the supervising judge probably should exercise his discretion to consider whether the impact on the debtor of even a temporary deprivation of the property outweighs the interest of the creditor or the state in affording the creditor ex parte attachment. See part II, infra.

Whatever may be the realities of the role of the judiciary in the issuance of sequestration writs in Orleans Parish, it is obvious that the majority opinion in Mitchell mandates that we review the North Dakota attachment law to determine if there is meaningful judicial supervision of the prejudgment attachment process. It is apparent that there is no such supervision.⁷ 

C

The Supreme Court in Mitchell viewed as important the right of the Louisiana debtor to an immediate and full hearing on the matter of possession following the execution of the writ, a hearing at which the writ must be dissolved unless the creditor "proves the grounds upon which the writ was issued." La.Code Civ.Proced. Art. 3506. The Mitchell Court noted that this provision cuts "to a bare minimum the time of creditor or court supervised possession." 416 U.S. at 610, 94 S. Ct. at 1901. N.D.C.C. § 32-08-24 allows the North Dakota debtor a hearing to seek discharge of the warrant of attachment. According to N.D.C.C. § 32-08-18 the debtor may seek discharge "at any time after he has appeared in the action and before final judgment." If the hearing court finds "that the attachment was irregularly issued, or the affidavit upon which it was issued is untrue, the attachment must be discharged." N.D.C.C. § 32-08-24. This section has been construed by the North Dakota Supreme Court as placing upon the creditor the burden "to show that the grounds (upon which the warrant of attachment was issued) alleged in the affidavit actually existed, and, if the (creditor) fails to sustain such burden, the attachment must be dissolved." Page v. Steinke, 60 N.D. 685, 690, 236 N.W. 261, 263 (1931). See also Quality Builders, Inc. v. Hahn, 134 N.W.2d 577, 583 (N.D.1965). Thus it would appear that the provision for discharge provided by the North Dakota statute is similar in scope to the Louisiana counterpart allowing a debtor to seek immediate dissolution of a writ of sequestration.

Nevertheless, as we read the North Dakota statutory provisions for post-seizure discharge of the warrant of attachment, N.D.C.C. §§ 32-08-18 to 32-08-24, in order to obtain such a post-seizure hearing the debtor must first furnish an undertaking, or bond, equal to the value of the property seized, whereas no such bond requirement appears in the Louisiana statute. We consider this distinction significant. The bond requirement places a considerable impediment on any debtor who seeks to contest the attachment of any item of substantial value, and to the extent that any debtor is unable to meet the bond requirement in order to obtain a discharge hearing, the goal of minimizing the impact on the debtor of a wrongful attachment has been undermined.II

In Mitchell, personal property consisting of a refrigerator, range, stereo, and washing machine, were the subject of the writ of sequestration. Here, as noted, a mobile home constituting the only residence of the Guzman family was seized and removed under the warrant of attachment.⁸  Although the characteristics of the instant property, standing alone, might not necessarily defeat the right of attachment, certainly it merits consideration in connection with the balancing test promulgated in Mitchell. Indeed, Mr. Justice White's opinion indicates that in some instances the impact of the deprivation of the debtor may override "his inability to make the creditor whole for wrongful possession, the risk of destruction or alienation if notice and a prior hearing are supplied and the low risk of a wrongful determination of possession through the procedures now employed." 416 U.S. at 610, 94 S. Ct. at 1901. Consideration of the impact of the deprivation on the debtor is not solely a matter for the legislature in establishing public policy. Rather, under Mitchell it is a factor to be weighed in determining if concepts of due process validate specifically the ex parte seizure under review.

We believe that on the facts of this case the impact upon the Guzmans of losing their sole residence outweighs the possible detriment to the property interest of the creditor in the mobile home.⁹ 

Here we have more than the inconvenience caused by the deprivation of some household items, the property seized in Mitchell. In this case we have debtors faced with the catastrophe of losing their home in an ex parte procedure by which they are summarily evicted without any opportunity to be heard and to resist the grounds for eviction.¹⁰  Truly, these debtors were driven to the wall by the seizure of the mobile home. Cf. Sniadach v. Family Finance Corp., supra, 395 U.S. at 341-342, 89 S. Ct. 1820.

III

Sheriff Ouellette submits that he is immune from liability because he was performing a ministerial act in executing a valid writ of attachment.

This court has held that a quasi-judicial form of immunity is extended to "police and other court officers" for purely ministerial acts when they do nothing more than perform orders issuing from a court. See, e. g., Duba v. McIntyre, 501 F.2d 590, 592 (8th Cir. 1974). See also Rhodes v. Houston, 202 F. Supp. 624, 636 (D. Neb.) aff'd, 309 F.2d 959 (8th Cir. 1962).

This issue was not considered by the district court in granting summary judgment, and we are not inclined to hold as a matter of law, on review of the summary judgment proceeding, that quasi-judicial immunity extended to the sheriff.

It may well be that the sheriff is clothed with immunity, but inasmuch as this action must be remanded for further proceedings, the question of quasi-judicial immunity should be resolved upon a ventilation of all of the facts bearing upon that issue.

IV

In summary, we conclude for the following reasons that the statutory attachment procedure of North Dakota Century Code Chapter 32-08 does not achieve the constitutional accommodation of the conflicting interests of the debtor and the creditor as required by Mitchell :

1. Lack of a requirement that the affidavit supporting the request for the warrant of attachment alleged the need for summary procedure in order to avoid removal, destruction, or concealment of the property or loss of the creditor's proprietary interests therein;

2. Lack of adequate judicial supervision by requiring issuance of the warrant of attachment by the judge of the court instead of the clerk;

3. Failure to provide the debtor with opportunity to seek discharge of the warrant of attachment without posting bond.

4. Finally, the impact upon the plaintiff-debtors resulting from the physical seizure and removal of their sole residence outweighs, on the facts of this case, the state's interest in providing ex parte preliminary relief for the creditors of plaintiffs.

For lack of a constitutional accommodation as taught by Mitchell, we hold that the seizure of plaintiffs' mobile home constituted a denial of due process of law as under the Fourteenth Amendment.

The judgment of the district court is vacated and the cause is remanded to the district court for further proceedings.